Page No.# 1/8 vs The State Of Assam And 5 Ors
2025 Latest Caselaw 4328 Gua

Gauhati High Court

Page No.# 1/8 vs The State Of Assam And 5 Ors on 21 March, 2025

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                                Page No.# 1/8

GAHC010154352024




                                                          2025:GAU-AS:3101

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/3868/2024

         DR. BHASKAR KALITA
         SON OF SRI SANTO RAM KALITA, RESIDENT OF JYOTI PATH, PORUAH
         CHARIALI, OPP. TO NENA, NEAR DON BOSCO SCHOOL, P.O- NIKMUL,
         DISTRICT SONITPUR, ASSAM


         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY, EDUCATION
         DEPARTMENT (HIGHER), GOVERNMENT OF ASSAM, DISPUR, GUWAHATI-
         781006.

         2:THE JOIN SECRETARY
          HIGHER EDUCATION DEPARTMENT
          GOVT OF ASSAM
          DISPUR.

         3:THE DIRECTOR OF HIGHER EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI- 781019

         4:THE DEPUTY DIRECTOR HIGHER EDUCATION
          DEPARTMENT
          KAHILIPARA
          GUWAHATI
         ASSAM.

         5:DR. RAMEN TALUKDAR
          PRESIDENT OF GOVERNING BODY
          BARKHETRI COLLEGE
          P.O- MUKALMUA
          DISTRICT- NALBARI
                                                                               Page No.# 2/8

             ASSAM.

            6:THE GOVERNING BODY OF BARKHETRI COLLEGE
             REPRESENTED BY ITS PRESIDENT P.O MUKALMUA
             DISTRICT- NALBARI
            ASSA M

Advocate for the Petitioner   : MR D K DAS, MR H BETALA

Advocate for the Respondent : SC, EDU, MR. A BORUA (R- 5, 6),MR. P P DUTTA (R- 5, 6),MR. T
J MAHANTA (R- 5, 6),SC, HIGHER EDU,FOR CAVEATOR,MR. R ISLAM




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                         ORDER

Date : 21-03-2025

Heard Mr. H Betala, learned counsel for the petitioner. Also heard Mr. S Das, learned counsel for the respondent Nos. 1 to 4 as well as Mr. TJ Mahanta, learned senior counsel for the respondent Nos. 5 & 6.

2. The petitioner's case is that he is the Principal of Barkhetri College, Mukalmua in the district of Nalbari. One Sri. Ramen Talukdar, who is the President of the Governing Body of the College, raised a number of complaints against the petitioner before the Director, Higher Education (DHE in short) regarding spending of college funds without any approval of the Governing Body. The Governing Body had later granted approval to all the decisions taken by the petitioner.

3. The petitioner's counsel submits that the petitioner had also filed complaints before the DHE against the respondent No. 5, who was the President of the Governing Body of the College, for his unwanted interference in the administration of the College by the petitioner. However, the DHE issued a show-

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cause notice dated 07.03.2024 to the petitioner, pursuant to allegations raised by the respondent No. 5, without any approval of the Governing Body and without any preliminary enquiry or statement of allegations made against the petitioner. He submits that the Government Circular dated 11.03.2017 issued by the office of the Director of Higher Education, Assam, envisages that the DHE cannot entertain complaints against a particular Government servant, without a resolution being passed to that effect by the Governing body of a College. He submits that not only has the DHE not taken any decision on the complaints made by the petitioner against the respondent No. 5, but instead, vide letter dated 23.07.2024, removed the financial powers of the petitioner as DDO, by appointing the Inspector of Schools, Nalbari to temporarily act as the DDO of the College.

4. The petitioner's counsel further submits that show cause notice dated 07.03.2024 has been issued to the petitioner under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as the "1964 Rules"), regarding the imposition of penalty prescribed under Rule 7 of the aforesaid Rules, to which the petitioner has submitted his reply, vide letter dated 13.03.2024, denying the charges levelled against him.

5. The petitioner's counsel submits that the Departmental Proceedings that has been initiated against the petitioner, has been done on the basis of the complaints raised by the respondent No. 5, without the knowledge of the Governing Body of the College. Hence, interference of this Court is required to thrash out all the impediments, directing the respondent authorities to complete the proceedings under Rule 9 of the 1964 Rules, by taking into account the role of the respondent No. 5 in the activities conducted by him, to obstruct smooth Page No.# 4/8

functioning of the College.

6. The counsels for the respondents, on the other hand, submit that the writ petition should be dismissed, as there cannot be a challenge to a show cause notice in the initial stage, especially when the petitioner has submitted a reply to the same and no final decision has been taken on the Departmental Proceeding that has started.

7. Mr. TJ Mahanta, learned senior counsel for the respondent Nos. 5 & 6, referring to the decisions of the Supreme Court in the case of Union of India & Anr. vs. Kunisetty Satyanarayana , reported in (2006) 12 SCC 28, Secretary, Ministry of Defence & Ors. vs. Prabhash Chandra Mirdha , reported in (2012) 11 SCC 565 and in the case of Special Director & Anr. vs. Mohd. Ghulam Ghouse & Anr. reported in (2004) 3 SCC 440, submits that writ jurisdiction is a discretionary jurisdiction and such a discretion is not ordinarily exercised by quashing a show cause notice or a charge-sheet. He accordingly submits that when the petitioner has made a reply to the show cause notice on merits and a final decision has not been taken in the Departmental Proceeding that has been initiated against the petitioner, this Court should not interfere with the same, inasmuch as, the letter dated 06.10.2023 issued by the respondent No. 5 to the Director, Higher Education, Assam clearly reflects in paragraph 3, that the Governing Body meeting held on 13.09.2023 expressed serious concern on the matter of spending more than Rs. 61 lakhs by the Principal of the College, without prior permission of the Governing Body. Further, in an earlier case, the petitioner had spent Rs. 32 lakhs, without prior permission of the Governing Body.

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8. I have heard the learned counsels for the parties.

9. The show cause note dated 07.03.2024 issued to the petitioner under Rule 9 of the 1964 Rules framed the following charges against the petitioner, which are as follows:-

"1. Whereas, as the Principal you were mandated to abide by financial procedures, as per Assam Public Procurement Act, 2017 and Assam Public Procurement Rules, 2020 regarding procurement/work related matters, it is seen that you did not comply with the said rules and had procured items in contravention to the rules, like not making comparative statements and giving procurement order without following due process, as per enquiry report submitted.

2. Whereas, as Principal you were mandated to ensure compliance of the leave rules and report any deviation of the leave rules, but it has been reported by the President, Governing Body that you had supported unauthorized leave of Mrs. Jyotishna Das by not placing the matter before Governing Body and by allowing to engage an substitute teacher to take classes on her behalf without any statutory/executive provision of such alternative teaching arrangement.

3. Whereas, by the virtue of being the Principal you are also the Secretary of the Governing Body, Barkhetri College and as per the relevant rules you are supposed to bring the matter of such unauthorized absence to the Governing Body, but the Governing Body was kept in dark about unauthorized absence of Mrs, Jyotishna Page No.# 6/8

Das and facilitation of such alteration teaching arrangement without prior approval of the Governing Body.

4. Whereas, by the virtue of being the Principal you are also the Secretary of the Governing Body, Barkhetri College and as per the relevant rules - "the Secretary of the Governing Body shall be responsible to report to the Director about any deviation of financial norms and procedures or any loss of assets of the College immediately whenever it comes to his notice,' but you have not reported any such deviation from financial and administrative rules and procedure thereof, as stated in the enquiry report, to the Director of Higher Education."

10. The petitioner has made a lengthy reply to the show cause notice on merits, denying that the purchases made by him, have not been made without the approval of the Governing Body. The petitioner had also denied the veracity of the other charges framed against him. In the case of Prabhash Chandra Mirdha (supra), the Supreme Court has held that ordinarily a writ application does not lie against a charge sheet or show cause notice, for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the rights of any party, unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. It further held that a show cause/charge sheet does not infringe the right of a party.

In the present case, the petitioner has replied to the show cause notice and in terms of the above judgment, the same does not give rise to any cause of action, especially when no final decision has been made by the respondent Page No.# 7/8

Nos. 1 to 4.

11. In the case of Kunisetty Satyanarayana (supra), the Supreme Court has held that a writ jurisdiction under Article 226 being a discretionary jurisdiction it should not ordinarily be exercised by quashing a show-cause notice or charge sheet. In some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice, if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter. In the case of Mohd. Ghulam Ghouse (supra), the Supreme Court has deprecated the practice of the High Courts entertaining writ petitions, questioning the legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition.

12. In the present case, this Court is of the view that the present case does not come within the very rare and exceptional case for the High Court to quash the show-cause notice that has been sent to the petitioner. There is nothing to show that the Departmental Proceeding initiated against the petitioner is without jurisdiction or that it is wholly illegal. Further, the petitioner in paragraph 20 of the writ petition, has made an averment that the Departmental Proceeding that has been initiated against him under Rule 9 of the 1964 Rules, Page No.# 8/8

should be completed, though he has put a rider that the respondent No. 5 should also be made a party to the said proceeding. There is nothing to show that any fundamental right or legal right of the petitioner has been violated by the initiation of a departmental proceeding against the petitioner and if the same is not allowed to be concluded, the same would cause prejudice to all the parties.

13. On considering all the above facts, this Court is of the view that there is no ground to allow the writ petition, by setting aside and quashing the impugned show cause notice dated 07.03.2024 and the impugned order dated 23.07.2024 issued by the Director of Higher Education directing the Inspector of Schools to temporarily act as DDO.

14. The issue of whether the respondent No. 5 should be made a party to the proceeding of the Departmental Proceeding is left to the discretion of the Disciplinary Authority, which is a different matter altogether.

15. Being devoid of any merit, the writ petition is dismissed. Interim order passed earlier stands vacated.

JUDGE

Comparing Assistant